Admission Of ‘Bad Character’ Evidence

Kellie Toole

South Australia

When the South Australian parliament passed the Evidence (Discreditable Conduct) Amendment Act 2011 (SA), it skilfully negotiated a legal and political minefield. However, its handling of the latest change in this area of law has been far less adept.

The admission of evidence of the ‘bad character’ of a criminal defendant has long been subject to strict conditions, on the basis that a defendant’s criminal history should not be used to persuade a jury of that person’s guilt in the present.

The Evidence (Discreditable Conduct) Amendment Act 2011 introduced s 34P to the Evidence Act 1929 (SA), to lower the threshold for the admission of bad character evidence (referred to as ‘discreditable conduct’ in the Act) as circumstantial evidence of guilt through propensity reasoning.

Despite making it easier for potentially damning evidence of convictions and uncharged acts to be admitted against criminal defendants, adequate consultation with the profession meant that the changes were broadly accepted as a necessary and reasonable response to an area of law that had become extremely controversial and confusing.

Part of the reason for the general acceptance of the changes was that s 34P(4) required that a party seeking to adduce evidence of bad character give reasonable notice in writing to each other party in the proceedings. Section 34P(5) gave the court discretion to dispense with the above requirement.

The requirements of notice have been much debated in the year since the amendments have been in force. The Solicitor-General and prosecutors have argued that they are too onerous, and defence counsel have argued that they are essential and the courts have been too lenient in dispensing with them.

The government originally introduced a Bill that would abolish the notice requirement for evidence of bad character that was being used for any purpose other than inferring the guilt of a defendant on the basis of their propensity or disposition. This would have brought the SA legislation into line with the Uniform Evidence Act, and meant that where evidence of bad character was brought for a non-propensity purpose, such as to show context or background to the offending, there would be no requirement of notice.

However, the government amended the Bill to remove ss 34P(4) and 34P(5) completely so that there would be no notice requirement upon prosecutors or co-accused seeking to introduce evidence of bad character for any purpose.

The government’s attempt to remove the notice requirements failed, and the Bill passed with an Opposition amendment restoring the government’s original proposal. The Shadow Attorney-General successfully argued that the government’s proposal created a risk that innocent people would be wrongly imprisoned just to save the resources of the state.

In seeking to abolish the provisions requiring notice of intention to lead evidence of bad character, the government alienated significant sections of the legal profession that had worked closely with it in 2011 to find a fair balance between the rights of individual defendants and the need to efficiently administer the criminal justice system.

KELLIE TOOLE teaches both Criminal Law and Evidence Law at the University of Adelaide.